"Guilty before God" ... former senior Nazi Adolf Eichmann stands in a glass cage during his 1961 trial in an Israeli court, which sentenced him to death.
In his essay ''The Inhumanity of Government Bureaucracies'' (2000), Hans Sheerer points out that, while news media tend to focus on the political leaders of inhumane governments, public servants and bureaucratic systems are responsible for transforming politically articulated agendas into devastating realities. The past century saw several shocking examples of bureaucrats serving morally reprehensible governments, such as in Hitler's Germany, Stalin's Russia, Miloševic's Yugoslavia and Saddam Hussein's Iraq.
The ethical duties of public servants in developing and implementing government policy have been discussed widely in Australia over the past two decades, particularly through the articulation of the Australian Public Service's values and code of conduct. The Public Service Commission recently reviewed the federal Public Service Act, as recommended by the Ahead of the Game report in 2010. The review resulted in amendments to the act's values, among other changes.
Public servants could not rely on whistleblower laws if the government was secretly developing policies such as the Holocaust, apartheid, the White Australia policy or those that led to the stolen generations, which were all legal.
The intent of the APS values and the new APS ''employment principles'', as explained in the explanatory memorandum of the amending bill, is, among other things, to:
- provide the philosophical underpinning for the APS;
- reflect public expectations of the relationship between public servants and the government, the Parliament and the community; and
- articulate the culture and operating ethos of the APS.
Former intelligence analyst Andrew Wilkie, now an independent federal MP, gives evidence to Parliament in 2003. Photo: Penny Bradfield
The APS values were simplified so they encompassed six values rather than 15. In a previous incarnation, the APS was required to be ''responsive'' to the government in providing advice and implementing government policies and programs. Under current law, the notion of responsiveness has been replaced with ''commitment to service'' and ''impartiality''. Under these values, the act requires the APS to be:
- ''professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the government''; and
- ''apolitical and provides the government with advice that is frank, honest, timely and based on the best available evidence''.
The inherent meaning of being ''apolitical'' and ''professional'' in the Westminster tradition is perhaps best explained in this extract from the Guidelines on Official Conduct of Commonwealth Public Servants (1995): ''Elected governments, whatever their political make-up, are entitled to expect loyalty and dedication from the public service. This professional commitment is owed to the government of the day, not to the political party or parties to which the members of the government belong.''
This explanation underscores the APS's commitment to advance the public policy (or political) interests of the ''government of the day'', in accordance with existing law, but not to act with any explicit partisan motives, either in support of or opposition to the government. In this context, the values of ''commitment to service'' and ''impartiality'' could be considered controversial, particularly when one considers the following question:
Former Immigration Department employee Michaela Banerji was sacked after she used Twitter to criticise government policy. Photo: Jay Cronan
What should a public servant do when a government pursues a morally objectionable policy?
In a broader sense, this question asks whether there are any theoretical, philosophical or practical limits to being apolitical and professional. The Public Service Act, despite the recent review, provides insufficient guidance. Beyond the act, there also appears to be a lack of sufficient official documents that delve deeply into this question, which could guide both APS leaders and average public servants if they were ever placed in such a situation. The lack of documentary guidance could lead one to conclude that there are no limits on public servants to develop or implement federal government policy, so long as the policy is consistent with Australian law and the constitution (noting that international law, including treaties, has no legal effect in Australia unless enacted through domestic legislation).
This lack of guidance has the potential to place public servants in personally and professionally compromising positions. APS staff who contemplate the question above need only consider any number of recent cases in which public servants, when required to develop or implement a morally questionable policy, acted either ''immorally'' by complying with the wishes of their minister or government, or ''unprofessionally'' by seeking to intentionally undermine their government and its policy. To take an extreme but important example that underscores the former, consider Adolf Eichmann, the German bureaucrat and lieutenant-colonel in the Schutzstaffel (or SS). Eichmann was one of the officials charged and subsequently sentenced to death by an Israeli court in 1961 for his role in implementing the Holocaust (a legal policy of the Hitler government) among other actions.
Books such as Hannah Arendt's Eichmann in Jerusalem: A Report on the Banality of Evil (1963) and David Cesarani's Eichmann: His Life and Crimes (2006) demonstrate Eichmann is a controversial yet relevant case study when considering the question above, given he is perhaps the most famous example of a public servant who was found criminally liable for implementing a legal (under German law) yet immoral government policy. Eichmann's crimes, as determined by the Israeli court, were that he had committed, among other offences, ''crimes against the Jewish people'' and ''crimes against humanity'' (as defined by Israeli legislation) by:
- causing the killing of millions of Jews;
- placing millions of Jews under conditions that were likely to lead to their deaths;
- causing serious bodily and mental harm; and
- taking part in the forced deportation of Jewish and non-Jewish civilians.
Eichmann, for his part, never denied his official involvement in the Holocaust (among other government policies that he was responsible for implementing). His role was limited to organising the logistics of transporting Jews and other civilians to concentration and death camps such as Auschwitz. He was never involved in developing or approving official German government policy. Rather, Eichmann, his defence lawyer said, considered himself ''guilty before God but not before the law'', claiming that while the Holocaust was ''one of the greatest crimes in the history of humanity'' his official actions were consistent with German government policy and German law.
Case studies such as Eichmann's show that average public servants (and everyday people) have the capacity to commit morally objectionable acts while later acknowledging their wrongdoing or providing superfluous justifications. Arendt notes that several high-ranking members of the German civil service - public servants who were not Nazis - were instrumental in developing the legal and policy framework that gave effect to the Holocaust. Eichmann cannot be dismissed as an official who was psychologically unsound, sadistic, consumed with emotional hatred for the mostly Jewish victims or without moral capacity (before Eichmann's trial, several psychiatrists certified him as ''normal'', ruling out mental insanity as well as ''fanatical anti-Semitism or indoctrination of any kind''). Cases like his show that morality in the performance of official public duties remains a crucial consideration that all public servants must, in one way or other, come to terms with.
Further, the Nuremberg and Eichmann trials, among other experiences such as the war-crime trials against the political and military leaders of the former Yugoslavia, show that the legal defence of ''following legal orders'' (in other words, being ''professional and apolitical'') beyond established moral norms is a defence that most nations have refused to accept on moral or legal grounds. Accordingly, one may conclude that APS officials potentially have broader legal and moral responsibilities, not only to the government of the day but to the Australian people and to humanity, that go beyond the strict legal confines of the Public Service Act. This would render particular elements of the act redundant in instances where public servants are required to implement government policies that may be deemed immoral.
What separates a ''moral'' policy from an ''immoral'' one can be a fine line and, in some cases, requires an individual's subjective assessment. This is perhaps the greatest challenge facing public servants. Public policies considered to be immoral need not be confined to acts of genocide. For example, extreme economic policy settings, which contribute to financial hardship and, in some cases, severe poverty - such as hyperinflation in Germany's Weimar Republic or policies that either caused or exacerbated the Great Depression or the recent global financial crisis - may also encompass moral dimensions. Recent debates involving conscience votes on issues such as abortion and other reproductive rights highlight the fact that moral assessments can be difficult, subjective and highly controversial. If the Public Service Commission was to consider this question systematically, it would find that collective attempts to define where morality ends and immorality begins, such as the United Nations' Universal Declaration of Human Rights, may be sound in theory but are fraught with practical difficulties of interpretation, which can shift under the weight of various philosophical, economic, social or political forces, leading to very different conclusions. The ongoing debate about the virtues of the 2003 invasion of Iraq underscores this point. The perceived immorality of invading Iraq on the basis of questionable intelligence, as expressed by some, may ultimately result in morally beneficial outcomes, on a utilitarian basis, if Iraq's transition from a tyrannical dictatorship to a fledging democratic state provides all Iraqis with individual freedom, stability and prosperity at some future point in time.
The other main difficulty for public servants who are asked to pursue a morally objectionable policy is what they can or should do about it. In some ways, their choice is simple: do nothing and comply with government policy, or take action. The Eichmann case highlights that humanity's common, self-interested instincts - to pursue survival, economic security, and personal and career advancement - may ultimately help public servants override their personal moral considerations by deciding to do nothing. The potential futility of taking an action that has little prospect of influencing government policy may also encourage public servants to do nothing. For some bureaucrats, the perceived opportunity of moderating government policy over an extended period of time by staying in the bureaucracy and operating within existing processes may motivate them to do nothing in the short term. Such a strategy, however, is fraught with difficulties, as such opportunities are generally scarce, available only to the highest-ranking public servants, and provide no guarantee of success. Alternatively, for those who decide to act, the absolving of one's individual conscience, despite potentially significant personal consequences, may be a sufficient outcome, even if the action taken proves to be futile.
In countries such as Australia, which have robust, free, fair elections, some may argue that public servants have no right to act contrary to government policy, on the grounds that the elected government received a mandate from voters to govern. Such an assessment is only valid if the electorate was given all details of the policy in question (including its design and implementation elements). These days, the public statements of politicians and the release of policy information tend to be tightly controlled and scripted. It would be very rare for a government or opposition to release enough details during an election campaign to allow voters to consider the full implications of a policy.
For public servants who wish to take action, several legal options are available, including resigning from the APS or taking part in the political process outside of their job. The former can provide an opportunity to influence domestic political debate free from the constraints of the Public Service Act, as demonstrated by Andrew Wilkie's decision to quit the Office of National Assessments in 2003. The latter option may involve joining political parties, taking part in partisan activities such as protests against government policy (as was the case for public servants who attended the ACTU's anti-WorkChoices protests in Canberra in 2007), or petitioning parliamentarians. But while these actions are currently permissible, they ultimately place individual APS employees in a difficult position, as their capacity to remain professional and apolitical may be brought into question. Some in the APS believe that whistleblower protections are sufficient to protect public servants from the types of moral dilemmas this article examines. Yet whistleblower protections apply only to alleged breaches of the APS code of conduct, not to the perceived immorality of government policies or programs. Hence, public servants could not, for example, rely on the whistleblower framework if the government was secretly developing immoral policies such as the Holocaust, apartheid, the White Australia policy or those that led to the stolen generations, which were all legal policies.
Beyond the options above, a number of illegal options are also available to public servants. The unauthorised disclosure of information (leaking), which is an offence under the Crimes Act and carries a two-year jail sentence, continues to be the most prevalent choice. The ethics of leaking are contentious; some, such as Public Service Commissioner Stephen Sedgwick, view leaking as unethical and ultimately counterproductive as it undermines the ''relationship of trust'' between the government and the APS; others say leaking is necessary, arguing that a functioning democracy requires informed public debate.
The emergence of WikiLeaks has given this latter view greater prominence, particularly when the website published diplomatic cables that were leaked to it by former US Army private Bradley (now Chelsea) Manning. Human rights lawyer Jennifer Robinson said: ''Without question, Wikileaks has made a remarkable contribution to free speech, human rights and the operation of democracy … by holding governments to account by revealing abuse and empowering the public to make better-informed democratic choices.''
A more extreme illegal action was highlighted in the 2008 movie Valkyrie, which depicted the lengths to which elements of the traditional German establishment, including senior military officers and public servants, went to remove Hitler from power on the basis that his government's actions, particularly its conduct of the war, were not in the national interest of the German people and hence justified an illegal response.
In the Australian context, the line between legal and illegal action was given greater clarity recently, placing extra constraints on public servants' ability to take legal action. The Federal Court heard the case of Banerji v Bowles last year, which examined former Immigration Department employee Michaela Banerji's pseudonymous use of Twitter to criticise Australia's immigration detention policies. The court found Banerji did not have an ''unbridled right'' to express her views, particularly in the context that such communication breached her contract of employment - meaning that her obligations as an APS employee trumped her implied right of free political communication, which the High Court had previously said existed within Australia's constitutional framework.
The relationship between morality, public policy and the role of public servants is dynamic and complex. The Eichmann case shows us that there are absolute moral bounds that limit public servants' duty to be professional and apolitical to the government of the day. However, determining these bounds and deciding on appropriate actions can be difficult. Ultimately, the lack of clarity that exists within the current legal and administrative framework poses risks to the quality of public sector governance in Australia.
John Adams is a public policy specialist. firstname.lastname@example.org